665 F.

2d 1330
215 U.S.App.D.C. 27

Vincent C. THOMAS, Jr., Administrator of the Estate of Ann

Nash Bottorff, Deceased, Individually and on
behalf of all others similarly situated
v.
LOCKHEED AIRCRAFT CORPORATION, a California
Corporation,
Defendant & third-party plaintiff
v.
The UNITED STATES of America, Third-party defendant,
Appellant.
No. 80-1323.

United States Court of Appeals,

District of Columbia Circuit.
Argued June 9, 1981.
Decided Sept. 30, 1981.

Appeal from the United States District Court for the District of Columbia
(D.C. Civil Action No. 75-1831).
Katherine S. Gruenheck, Atty., U.S. Dept. of Justice, Washington, D.C.,
with whom Alice Daniel, Asst. Atty. Gen., Washington, D.C., at the time
the brief was filed, Thomas S. Martin, Acting Asst. Atty. Gen., Charles F.
C. Ruff, U.S. Atty. and William Kanter, Atty., U.S. Dept. of Justice,
Washington D.C., were on the brief, for appellant. Eloise E. Davies, Atty.,
U.S. Dept. of Justice, Washington, D.C., also entered an appearance for
appellant.
Carroll E. Dubuc, Washington, D.C., with whom Temple L. Ratcliffe and
Richard M. Sharp, Washington, D.C., were on the brief, for appellee
Lockheed Aircraft Corp.
Isaac N. Groner and Raymond D. Battocchi, Washington, D.C., entered
appearances for appellee Thomas.

Before TAMM, ROBB and EDWARDS, Circuit Judges.

Opinion for the court filed by Circuit Judge TAMM.
TAMM, Circuit Judge:
In this case the Government appeals from a judgment holding it liable for
a claim in contribution or indemnity entered by the United States District
Court for the District of Columbia. Believing that the district court erred
in failing to find the exclusivity provision of the Federal Employees'
Compensation Act a bar to such a claim, we reverse and remand.
I. BACKGROUND
The factual circumstances leading to this litigation are set out in Schneider
v. Lockheed Aircraft Corp., 658 F.2d 835, at 838-839 (D.C.Cir.1981). For
present purposes it suffices to note simply that on April 4, 1975, an
accident occurred aboard a Lockheed-manufactured C5A aircraft that was
being used by the United States to transport approximately 301
passengers, including at least 226 Vietnamese orphans, from Saigon to the
United States. The plane crashed, killing approximately 144 persons.
On November 4, 1975, Vincent C. Thomas, Jr., filed a complaint as
administrator of the estate of Ann Nash Bottorff, a civilian employee of
the Department of the Navy, seeking damages for her wrongful death and
for injuries she suffered prior to her death.1 On January 9, 1976, defendant
Lockheed Aircraft Corporation (Lockheed) impleaded the United States
as a third-party defendant seeking indemnity or contribution on a variety
of tort and contract theories. Counts I and II of Lockheed's third-party
complaint assert a right to indemnity or contribution under the Federal
Tort Claims Act (FTCA), 28 U.S.C. 1346(b) et seq. (1976). Counts III
and IV are based upon admiralty law and Count V upon contractual
indemnity.2 After settling the plaintiff's claims against it, Lockheed
moved for summary judgment in the third-party action. The Government
filed a motion to dismiss. In an order dated December 7, 1979, the district
court granted Lockheed's motion for summary judgment, thereby denying
by implication the motion to dismiss. Thomas v. Lockheed Aircraft Corp.,
No. 75-1831 (D.D.C. Dec. 7, 1979), Joint Appendix (J.A.) at 225-26. The
court held that indemnity was available to Lockheed and that such a
"claim over" was not barred by the Federal Employees' Compensation Act
(FECA or the Act), 5 U.S.C. 8101 et seq. (1976). The rationale for this
decision had been developed in earlier memorandum opinions. In re Air
Crash Disaster Near Saigon, South Vietnam on April 4, 1975, 476 F.Supp.
521, (D.D.C. 1978), J.A. at 48-57; In re Air Crash Disaster Near Saigon,

South Vietnam on April 4, 1975, 476 F.Supp. 521 (D.D.C. 1979), J.A. at
66-78. On January 23, 1980, the district court entered the final judgment
from which the Government now appeals.3

II. DISCUSSION
1

The conflict between doctrines governing third-party suits for contribution or

indemnification and statutory exclusive remedy provisions of workmen's
compensation laws is "(p)erhaps the most evenly-balanced controversy in all of
workmen's compensation law ...." Larson, Workmen's Compensation: Third
Party's Action Over Against Employer, 65 Nw. U.L.Rev. 351, 351 (1970). The
policies underlying the two sides of this controversy are simply stated but
starkly opposed. On the one hand, the employer, here the federal government,
can point to the explicit congressional statement that its liability "with respect
to the injury or death of an employee," 5 U.S.C. 8116(c), is limited to the
compensation payments set out in the Act. Assuming arguendo the primary
negligence of the Government, however, the third party-here Lockheed-can
point to the inequity in subjecting it to a staggering liability that it would not
have had to bear "but for the sheer chance that the other parties involved
happened to be under a compensation act." 2A A. Larson, Workmen's
Compensation Law 76.10 at 14-288 (1976).

In examining this case, it seems clear that "(w)hen an employee covered by

workmen's compensation sues in negligence a third party who then impleads
the employer, there is no way fully to satisfy all policies coming into play."
Galimi v. Jetco, Inc., 514 F.2d 949, 952 (2d Cir. 1975). We believe that the
controversy is no longer a live one, at least as far as FECA is concerned. The
pertinent provision in FECA states in part:

The liability of the United States or an instrumentality thereof under this

subchapter or any extension thereof with respect to the injury or death of an
employee is exclusive and instead of all other liability of the United States or
the instrumentality to the employee, his legal representative, spouse,
dependents, next of kin, and any other person otherwise entitled to recover
damages from the United States or the instrumentality because of the injury or
death in a direct judicial proceeding, in a civil action, or in admiralty, or by an
administrative or judicial proceeding under a workmen's compensation statute
or under a Federal tort liability statute.

5 U.S.C. 8116(c) (1976). We believe that the settled rule applicable to the

case at hand is that this exclusivity provision serves to bar a third-party claim
against the United States with respect to the injury of a government employee
that is not based upon an independent duty owed by the Government to the
purported indemnitee. E. g., Galimi v. Jetco, Inc., 514 F.2d 949 (2d Cir. 1975);
Travelers Insurance Co. v. United States, 493 F.2d 881 (3d Cir. 1974); United
Air Lines, Inc. v. Wiener, 335 F.2d 379 (9th Cir.), cert. dismissed sub nom.
United Air Lines v. United States, 379 U.S. 951, 85 S.Ct. 452, 13 L.Ed.2d 549
(1964). Contra, Wallenius Bremen G.m.b.H. v. United States, 409 F.2d 994
(4th Cir. 1969), cert. denied, 398 U.S. 958, 90 S.Ct. 2164, 26 L.Ed.2d 542
(1970). Because these courts have ably analyzed this area of the law, we see
nothing to be gained in extended reiteration. See Kudelka v. American Hoist &
Derrick Co., 541 F.2d 651, 659 (7th Cir. 1976).
5

This weighty authority notwithstanding, Lockheed asserts that section 8116(c)

of FECA does not bar an action for contribution by a third party against the
United States. In Murray v. United States, 405 F.2d 1361, 1364 (D.C.Cir.1968),
we explicitly held to the contrary. Noting that no right of contribution exists
"unless there is a joint liability of both parties to the injured person," we stated
that "the Federal Employees' Compensation Act ... precludes a tortfeasor held
liable to a government employee from suing to obtain contribution from the
government." Id. Lockheed has not attempted to distinguish this case and we
see no reason to retreat from this aspect of our decision in Murray.4 The Murray
court left open, however, the question of whether "a claim of non-contract
indemnity" would be barred by the exclusivity provision of FECA. Id. at 1367.
Questioning decisions that assumed that contribution and indemnity claims
stood on the same footing, the court left for another day the "difficult question"
of whether a claim for noncontractual indemnity resting upon an independent
duty running from the third-party defendant, the putative indemnitor, to the
third-party plaintiff would also be barred under FECA. Id.

Because we find that Lockheed has alleged only derivative tort claims, we need
not dwell upon this question. Here Lockheed alleges the breach by the United
States of three basic duties owed it: first, the duty to use the aircraft in the
manner contemplated by both Lockheed and the United States; second, the duty
to provide adequate maintenance of the aircraft to prevent accidents of this type
from occurring; third, the duty to provide Lockheed with information about
incidents involving the safety of the aircraft. The first two of these duties are
clearly derivative and based upon the duties owed by the Government to its
employees and passengers. Lockheed's third assertion alleges no delictual duty
but rather one that sounds in contract. As pointed out above, however,
Lockheed did not pursue its claim of contractual indemnity in the district court.
See note 2, supra.

The two cases cited by Lockheed to support its assertion of the above duties as
"independent," running from the Government to Lockheed, in fact offer no such
support. In Holden v. Placid Oil Co., 473 F.Supp. 1097 (E.D. La. 1979), the
court did not find that an independent duty running from the employer to the
third party existed. Rather, summary judgment was denied in that case because
the facts were not sufficiently developed to determine whether under Louisiana
law an independent duty, based upon the employer's position as the
manufacturer of an allegedly defective product, might exist. Id. at 1102. In Roy
v. Star Chopper Co., 442 F.Supp. 1010 (D.R.I. 1977), aff'd, 584 F.2d 1124 (1st
Cir.), cert. denied, 440 U.S. 916, 99 S.Ct. 1234, 59 L.Ed.2d 466 (1978), the
court expressly found that an exclusivity provision in the Massachusetts
Workmen's Compensation Act barred indemnity claims against the employer
based on any noncontractual relationship. Id. at 1018. Under the unusual
circumstances of that case, the court found that an implied contract to
indemnify existed based largely upon the relationship between the parties "in
the nature of co-manufacturers." Id. at 1020.

In our examination of the duties alleged by Lockheed to have been owed it by

the Government, and on the facts before us, we agree with those courts that
have refused to find an independent duty running from the purchaser to the
manufacturer to use the product in question in such a way as not to bring
liability upon the latter. See, e.g., Santisteven v. Dow Chemical Co., 506 F.2d
1216 (9th Cir. 1974); Boldman v. Mt. Hood Chemical Corp., 288 Or. 121, 602
P.2d 1072 (1979); Olch v. Pacific Press & Shear Co., 19 Wash.App. 89, 573
P.2d 1355 (1978). But see Dole v. Dow Chemical Co., 30 N.Y.2d 143, 282
N.E.2d 288, 331 N.Y.S.2d 382 (1972). We believe that this issue is succinctly
summarized by Professor Larson, who states that

9
when
the relation between the parties involves no contract or special relation capable
of carrying with it an implied obligation to indemnify, the basic exclusiveness rule
generally cannot be defeated by dressing the remedy itself in contractual clothes,
such as indemnity, since what governs is not the delictual or contractual form of the
remedy but the question: is the claim "on account of" the injury, or on account of a
separate obligation running from the employer to the third party?
10

2A A. Larson, Workmen's Compensation Law 76.44 at 14-405 (1976). Here

the claim is clearly "on account of" the fatal injury to the employee. The district
court erred in failing to find FECA a bar to Lockheed's claim for contribution or
indemnity.5 The judgment of the district court is therefore reversed and the case
remanded for proceedings not inconsistent with this opinion.

11

It is so ordered.

Thomas also sought damages on behalf of all those similarly situated. The
district court denied class action certification

The district court did not reach Lockheed's maritime law contentions. Thomas
v. Lockheed Aircraft Corp., No. 75-1831 (D.D.C. Dec. 7, 1979), Joint
Appendix (J.A.) at 225-26. Furthermore, Lockheed abandoned its claim for
contractual indemnity. Brief for Appellee at 1 n.2

A stipulation filed under seal provided the basis for the trial court's entry of
final judgment in this case without a determination of liability and damages.
Brief for Appellant at 12 n.46

Because the issue has not been briefed or argued and is not necessary to our
judgment today, we do not decide the continuing validity of what has been
termed the "Murray credit." In dicta, the Murray court sought to mitigate the
"inequity residing in the denial of contribution against the employer" by
suggesting that the plaintiff in such a situation should be limited to recovery
from the defendant of one-half of the amount of damages sustained, if the
circumstances "would have entitled the (defendant) to contribution from the
employer if (FECA) had not interposed a bar." Murray, 405 F.2d at 1365-66.
This suggestion has been met with distinguished criticism, e.g., 2A A. Larson,
Workmen's Compensation Law 76.22 at 14-314 through 14-319 (1976), and
with less than overwhelming approval from other courts. E.g., Dodge v. Mitsui
Shintaku Ginko K.K. Tokyo, 528 F.2d 669, 672 (9th Cir. 1975), cert. denied,
425 U.S. 944, 96 S.Ct. 1685, 48 L.Ed.2d 188 (1976); Turner v. Excavation
Constr., Inc., 324 F.Supp. 704 (D.D.C. 1971); Arcell v. Ashland Chem. Co.,
152 N.J.Super. 471, 378 A.2d 53 (1977)

Because the parties have debated the availability of relief for Lockheed under
maritime principles only in footnotes in their briefs, see Brief for Appellant at
17-18 n.50; Brief for Appellee at 37-38 n.23, and because the district court
expressly reserved this issue, we do not think that disposition of this question is
appropriate at this time. Even if admiralty jurisdiction is appropriate, of course,
the district court should examine with care the intersection of such jurisdiction
with the exclusivity provision found in FECA. See generally Weyerhaeuser
Steamship Co. v. United States, 372 U.S. 597, 83 S.Ct. 926, 10 L.Ed.2d 1
(1963)